Lichten v. Eastern Air Lines

• Decision Date: 12 December 1949
• Docket Number: Civ. No. 44-498.
• Citation: 87 F. Supp. 691
• Parties: LICHTEN v. EASTERN AIR LINES, Inc.
• Court: U.S. District Court — Southern District of New York

87 F. Supp. 691

LICHTEN v. EASTERN AIR LINES, Inc.

Civ. No. 44-498.

United States District Court S. D. New York.

December 12, 1949.

Rein, Mound & Cotton, New York City, for plaintiff, John J. Tomich, New York City, of counsel.

Harold L. Russell, New York City, for defendant.

IRVING R. KAUFMAN, District Judge.

Defendant moves for summary judgment in its favor pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., on the ground that as a matter of law it is not liable to the plaintiff for the loss of the property alleged in the complaint. Plaintiff presents a cross-motion for summary judgment in its favor.

Defendant is a common carrier licensed by the Civil Aeronautics Board (hereafter referred to as the C.A.B.). On January 18, 1947, plaintiff purchased from defendant passage for herself and her baggage and was a passenger on that date on Flight 630 from Miami to Philadelphia. Plaintiff checked two bags with defendant but only one bag was delivered upon her arrival in Philadelphia. Plaintiff was informed that the other bag had gone forward in error to Newark Airport. The bag was subsequently delivered by defendant to plaintiff at Philadelphia on January 28, 1947.

Plaintiff alleges in her complaint as a first cause of action that three articles of jewelry valued at $3,187.95 were missing from the bag when finally delivered. As a second cause of action plaintiff alleges that defendant wrongfully delivered the bag to an unknown person at Newark Airport without proper identification, or surrender of a baggage tag, and accepted the return of the bag at some time thereafter from an unknown person without making a record of the identity of the person, and that the defendant thereby converted the missing jewelry to its own use.

Defendant denies knowledge or information as to the existence or value of the jewelry in the bag, or the alleged misdelivery of the bag, but concedes the existence of these facts for the purposes of its motion for summary judgment. Defendant does not admit the existence of the aforementioned allegations for the purpose of a ruling on plaintiff's motion. Plaintiff submits, however, that there is no substantial issue as to these facts and that defendant's liability can be established on the basis of the affidavits submitted. Defendant's motion will be considered first, since if that motion is granted, plaintiff's must necessarily fall; and both sides agree that there is no material fact in question for purpose of defendant's motion, and that only an issue of law is presented.

A preliminary matter which must be disposed of is the question of jurisdiction raised by the defendant.

Plaintiff alleges in her complaint that she is a citizen of the State of Pennsylvania and that defendant is a corporation organized under the laws of the State of Delaware and doing business in the State of New York, and that the cause of action concerns the loss of property valued at $3,187.95. These allegations are sufficient to satisfy the diversity of citizenship jurisdictional requirements. Defendant contests the jurisdiction on the ground that, as a matter of law, plaintiff allegedly cannot recover the requisite jurisdictional amount. However, it is the good faith of plaintiff's claim, and not the amount of recovery, which determines whether that requirement has been satisfied. St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed 845; Gray v. Blight, 10 Cir., 1940, 112 F.2d 696, certiorari denied, 1940, 311 U.S. 704, 61 S.Ct. 170, 85 L.Ed. 457; Kratina v. South Atlantic S. S. Co., D.C.S.D.Ga.1945, 63 F.Supp. 895. Plaintiff has in good faith presented a claim for a loss suffered by her in excess of $3,000; therefore the Court has jurisdiction over the case.

Furthermore a pleading that adequately discloses a present controversy dependent for its outcome upon the construction of a federal statute is one on which the district court can properly accept jurisdiction. Peyton v. Railway Express Agency, 1942, 316 U.S. 350, 62 S.Ct. 1171, 86 L. Ed. 1525. The present controversy falls within this category since the construction of the Civil Aeronautics Act of 1938, 52 Stat. 977, 49 U.S.C.A. § 401 et seq., is in question. Defendant previously raised the question of jurisdiction before Judge Ryan in its motion to dismiss the plaintiff's complaint, and Judge Ryan overruled the contention stating 8 F.R.D. 138, 139: "It appears, from these allegations, that the transportation involved was interstate air transportation and that it is subject to the provisions of the Civil Aeronautics Act * * *."

Defendant's contention, in support of its motion for summary judgment, is that the transportation in question was governed by several tariffs filed by it with the C.A.B., which tariffs excluded or limited the liability of defendant.

Section 483 of Title 49 U.S.C.A., the Civil Aeronautics Act of 1938, § 403, provides for the filing, posting and publishing of tariffs by air carriers and requires that contracts of carriage shall correspond to such tariffs.

The Rules Tariff governing the transportation by defendant are contained in Local and Joint Passenger Rules Tariff No. PR-1, C.A.B. No. 4, issued by M. F. Redfern, Agent, on behalf of the defendant and other air carriers of the Air Traffic Conference of America. Paragraph 1(IV) of these Rules Tariff provide that "The provisions of this tariff * * *, including provisions as to liability, shall become a part of the contract of carriage."

The following are the pertinent sections of the Rules Tariff on the subject of liability for loss of baggage:

"Rule 10. Baggage and Personal Property. (II.)

"Articles Accepted as Baggage: Baggage shall consist only on(sic) wearing apparel, non-liquid toilet articles and similar effects for actual use which are necessary and appropriate for the comfort and convenience of the passenger for the purposes of the journey and not intended for other persons or for sale. Money, jewelry, silverware, samples, negotiable paper, securities and similar valuables or business documents will be carried only at the risk of the passenger. * * *. (Emphasis added.)

"III. Value of Baggage.

"(A) Liability for-General. Except as provided in Paragraph (C) below no participating carrier shall be liable for the loss of, or any damage to, or any delay in the delivery of, any property of the following types which is included in a passenger's baggage, whether with or without the knowledge of the carrier:

fragile or perishable articles money, jewelry, silverware negotiable paper, securities, or other valuables, samples, or business documents;

or for any other loss or damage of whatever nature resulting from from any such loss, damage or delay * * * (Emphasis added.)

"(B) Liability for-Value. Except as provided in Paragraph (C) below the liability, if any, of a participating carrier for the loss of, or any damage to, or any delay in the delivery of, any baggage shall be limited to an amount equal to the actual value of such baggage, which shall be conclusively presumed not to exceed $100 for each fare-paying passenger, unless the passenger has, at the time of tendering such baggage for transportation, declared a higher value and paid an additional charge, at the rate of ten cents for each $100, or fraction thereof, by which such higher value exceeds $100, in which event the actual value of such baggage shall be conclusively presumed not to exceed such higher value * * *."

Since these Tariffs have been filed by defendant, unless they are unlawful or otherwise invalid, they must preclude or limit the liability of defendant for plaintiff's loss in this action.

There is no question that these Rules were within the authority conferred by the Civil Aeronautics Act and that they became a part of the contract between the carrier and the passenger. Mack v. Eastern Air Lines, D.C.Mass.1949, 87 F.Supp. 113; Jones v. Northwest Airlines, 1945, 22 Wash.2d 863, 157 P.2d 728. Section 483(b) of the Act, requiring that the provisions in the Rules Tariff be observed by both the carrier and the passenger, is derived from, and its language is substantially the same as Section 6(7) of the Interstate Commerce Act, Title 49 U.S. C.A. § 6(7). It is well established that a carrier's tariff on file with the Interstate Commerce Commission has an effect equivalent to law until declared unlawful by that Commission, and that the provisions of those tariffs establish the legal relationships of the parties. Western Union Telegraph Co. v. Esteve Bros., 1921, 256 U.S. 566, 41 S.Ct. 584, 65 L.Ed. 1094; Boston & Maine R. R. v. Hooker, 1914, 233 U.S. 97, 34 S.Ct. 526, 58 L.Ed. 868, L.R.A.1915B, 450, Ann.Cas.1915D, 593; American Ry. Express Co. v. American Trust Co., 7 Cir., 1931, 47 F.2d 16. This is so, irrespective of the injured party's actual knowledge of the tariff provisions. Western Union Telegraph Co. v. Esteve Bros., supra.

Section 483(a) of the Civil Aeronautics Act provides in part that "Tariffs shall be filed, posted, and published in such form and manner, and shall contain such information, as the Board shall by regulation prescribe; and the Board is empowered to reject any tariff so filed which is not consistent with this section and such regulations."

Any person may file a complaint with the Board asking that any rule, regulation or practice be declared unreasonable or unlawful. Sec. 642(a). Furthermore, the Board may investigate such matters on its own initiative. Sec. 642(b). If the Board finds, after notice and hearings, that any rules, regulations or practices are unreasonable or unlawful, it may determine and prescribe lawful rules, regulations or practices. Sec. 642(d).

Hence it can be seen that any rules determining liability must be approved by the C.A.B. and are subject to being questioned by any party. The question of the reasonableness and legality of these rules is within the sole jurisdiction of the C.A.B. and the...